Alyn Smith: It's our duty to explore all the options for Brexit

Alyn Smith: It's our duty to explore all the options for Brexit

NEXT week the Brexit drama moves to Luxembourg, where I believe a fundamental part of undoing Brexit will move a step forward. As we see the mess at Westminster, MPs need to know their choice is not this blindfold Brexit v No Deal – there are other options. One of them being to stop Brexit altogether.

Brexit has been the best of times and worst of times, and we’ve seen a number of people really step up, put the party badges to one side and work together to bring some sense to it all. I’m proud that I am one of a group of Scottish politicians from all three of the parliaments relevant to Scotland taking the UK Government to court to seek clarity on how the Article 50 notice can be revoked, should the UK Parliament decide to instruct the Government to do so.

Andy Wightman MSP and Ross Greer MSP for the Greens, Catherine Stihler and David Martin MEP for Labour, alongside Joanna Cherry MP and I for the SNP, have taken the case because we need to know a technical, but important point: can Article 50 be revoked unilaterally? Or if not what are the conditions of revocation?

Article 50 is the provision in the EU treaties whereby one member state can notify the others that it wishes to leave. The notification, by formal letter, kicks off a two year negotiation period where a new regime is negotiated. In the absence of agreement at the end of the two years EU law ceases to apply to the exiting state. Mrs May triggering Article 50 when she did, without any sort of agreed plan for what the UK Government wants to achieve in the talks, will go down as one of the worst decisions by any Prime Minister ever, but there we go, the clock is ticking. Can it be stopped?

There has been an industrial scale spin operation from Westminster to give the impression that no it cannot. That “well its done now, we’ll just need to make the best of it” approach trying to appeal to that soldiering on mustn’t grumble Best of British stoicism which has been so much in evidence lately.

But I believe it can – the question is how. We lodged the papers in the Scottish courts, specifically to ensure that it would receive a Scottish hearing. We sought a referral from the national court to the European Court of Justice in Luxembourg for a definitive ruling on the point, which is an open question given Article 50 has never been used before.

The UK Government has fought us tooth and nail, using every trick in the book while they were at it. I’m a lawyer to trade myself, I know a court case can be an expensive business and is not to be undertaken lightly. So I am glad that we have had the support of the indefatigable Jo Maughan and the Good Law Project with crowdfunder support, as well as a crack legal team. Despite this we lost in the Outer House, the judge agreeing with the UK Government that the question is hypothetical. We appealed, and the Inner House agreed with us that the question may well be hypothetical, in that it is not the current policy of the UK Government to revoke Article 50, but knowing the answer will make a concrete difference for MPs – and indeed MEPs – who have to approve or reject the deal. So a referral was made, accepted by the European Court of Justice in Luxembourg and a date set.

The UK Government lodged an appeal, which was rejected by the Court of Session. In a legally dubious move, which I fear shows exactly how much respect the UK Government has for Scotland’s distinctive law, they then appealed this decision to the UK Supreme Court. Just on Monday this application to appeal was roundly dismissed by the UK Supreme Court itself. At least their lordships have some respect for the UK’s constitution.

So we’re all set for Luxembourg on Tuesday. The court will hear the case, consider the treaties and give a ruling. We should have it in a few weeks, in time for the meaningful votes in the House of Commons and the European Parliaments.

I can’t predict the outcome, but I think the court can rule in two ways. Either Article 50 is or is not open to revocation. If it is not then surely it should say so on the face of the text, and it does not. If it is open to revocation then the question is whether that can be done unilaterally by the UK acting alone, or by agreement with the other 27 member states. There is a provision in Article 50 that if the exiting member state wants to extend the two-year timetable then it can apply, and the timetable can be extended by unanimous agreement of the 27. The text says nothing about revocation however, hence the question.

The clarity we seek from the court will be useful in many ways. I’m concerned that too many MPs are vulnerable to the “there is no alternative” pressure which will be immense, from business, the UK Government and indeed Brussels. Like the generals during the First World War, when it was obvious to all involved all was pointless but it was easier to continue than call a halt, I fear they could buckle. There are other options if we look a bit harder. The ruling will inform the MPs and MEPs as we deliberate on the entirely false choice of “this deal or no deal” as well as cutting through the spin and letting the public know that there is a way out of this. In all the twists and turns of Brexit it is clear to anyone with eyes to see that there is no good Brexit for Scotland. Our job is to ensure that any avenue to turn it around is properly explored.

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